Citation Nr: 0833222
Decision Date: 09/26/08 Archive Date: 10/02/08
DOCKET NO. 05-37 636 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30
percent for service-connected post-traumatic stress disorder
(PTSD) prior to June 11, 2008.
2. Entitlement to an initial evaluation in excess of 30
percent for service-connected PTSD beginning June 11, 2008.
REPRESENTATION
Appellant represented by: South Carolina Office of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The veteran served on active military duty from September
1987 to June 1997.
In January 2008, the Board of Veterans' Appeals (Board)
denied a compensable evaluation for the service-connected
residuals of a left wrist fracture and an effective date
earlier than March 6, 2003 for the grant of service
connection for PTSD and remanded the issue of an initial
rating in excess of 30 percent for the service-connected PTSD
to the RO for additional development.
FINDINGS OF FACT
1. Prior to June 11, 2008, the manifestations of the
veteran's service-connected PTSD are not shown to have
included circumstantial or stereotyped speech, panic attacks
more than once a week, difficulty in understanding complex
commands, memory impairment, impaired judgment and abstract
thinking, and difficulty in establishing and maintaining
effective work and social relationships.
2. Beginning on June 11, 2008, the manifestations of the
service-connected PTSD, which include insomnia, recurring
nightmares and intrusive memories of the Persian Gulf, some
difficulty concentrating, hypervigilance, irritability,
depression, and isolation, are shown to more nearly
approximate that of occupational and social impairment with
reduced reliability and productivity.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an initial evaluation
in excess of 30 percent for the service-connected PTSD have
not been met prior to June 11, 2008. 38 U.S.C.A. §§ 1155,
5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130 including
Diagnostic Code 9411 (2007).
2. The criteria for the assignment of an initial evaluation
of 50 percent for service-connected PTSD have been met
beginning on June 11, 2008. 38 U.S.C.A. §§ 1155, 5103A, 5107
(West 2002); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic
Code 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initial Considerations
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 and Supp. 2006). The regulations implementing
VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2007).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002). After having carefully reviewed the
record on appeal, the Board has concluded that the notice
requirements of VCAA have been satisfied with respect to the
issue decided herein.
The veteran was notified by VA letter in June 2003 on the
requirements needed to establish entitlement to service
connection, and service connection for PTSD was granted by
rating decision in August 2004, with a 30 percent rating
assigned effective March 6, 2003. The RO sent the veteran a
letter in June 2006 in which he was informed of the
requirements needed to establish entitlement to an increased
rating for PTSD.
In accordance with the requirements of VCAA, the June 2006
letter informed the veteran what evidence and information he
was responsible for and the evidence that was considered VA's
responsibility. No additional private evidence was
subsequently added to the claims file.
The Board notes that the veteran was informed in March 2006
that an effective date would be assigned if an increased
rating claim was granted.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. The evidence on file includes
VA psychiatric examinations in April 2004 and June 2008.
The Board concludes that all available evidence that is
pertinent to the PTSD claim decided herein has been
obtained and that there is sufficient medical evidence on
file on which to make a decision on this issue.
The veteran has been given ample opportunity to present
evidence and argument in support of his PTSD claim. The
Board additionally finds that general due process
considerations have been complied with by VA. See 38 C.F.R.
§ 3.103 (2007).
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the veteran, the Board finds that error
to be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998).
In this case, however, as there is no evidence that any
failure on the part of VA to further comply with VCAA
reasonably affects the outcome of this case, the Board finds
that any such omission is harmless. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds,
444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Law And Regulations
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R.
Part 4 (2007). The percentage ratings contained in the
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and the residual conditions in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate
diagnostic codes identify the various disabilities.
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2, 4.41 (2007). Consideration of the whole
recorded history is necessary so that a rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2;
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned.
38 C.F.R. § 4.7 (2007).
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held
that evidence to be considered in the appeal of an initial
assignment of a rating disability was not limited to that
reflecting the then current severity of the disorder.
In Fenderson, the Court also discussed the concept of the
"staging" of ratings, finding that, in cases where an
initially assigned disability evaluation has been disagreed
with, it was possible for a veteran to be awarded separate
percentage evaluations for separate periods based on the
facts found during the appeal period.
Schedular Criteria
A 30 percent evaluation for psychiatric disability is
warranted for occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events). 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent evaluation for psychiatric disability is
warranted for occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (for example, retention of only
highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. Id.
A 70 percent evaluation requires occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. Id.
A 100 percent evaluation for post-traumatic stress disorder
requires total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name. Id.
The global assessment of functioning (GAF) score reflects the
psychological, social, and occupational functioning on a
hypothetical continuum of mental health illness. See
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also
Richard v. Brown, 9 Vet. App. 266, 267 (1996).
A GAF score of 41 to 50 is defined as serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifter) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job).
A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers).
A GAF of 61 to 70 is defined as mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy or theft within the household) but generally
functioning pretty well and has some meaningful interpersonal
relationships.
Analysis
The veteran contends that he should be assigned an initial
evaluation in excess of 30 percent for his service-connected
PTSD because of increased symptomatology.
The veteran complained on VA psychiatric evaluation in April
2004 of poor appetite and concentration, depression,
occasional insomnia, nightmares once a week, intrusive
thoughts, anxiety, hypervigilance, and anger. He said that
he did not have any friends. He did not take any medication
for his psychiatric disorder. It was noted that the veteran
worked a temporary full-time job as an instructor. He had
been married twice and had three children.
On mental status examination in April 2004, the veteran was
alert, neatly dressed, and oriented. His mood was tense; his
affect was appropriate. There were no loose associations or
flight of ideas, no homicidal or suicidal ideations, no
impairment of thought processes, and no delusions or
hallucinations. His memory was described as good. His
insight and judgment were considered adequate. The diagnoses
were PTSD and depressive disorder. His GAF score was 55, and
he was considered to have moderate impairment.
VA treatment records from December 2005 to June 2008 reveal
that although the veteran's GAF score was 55 in January 2006,
it was noted that he was doing well in March 2006.
Subsequent GAF scores were 65 in May 2006, 60 in October
2006, and 70 in March 2007.
On VA psychiatric evaluation on June 11, 2008, the veteran
said that he lived with his wife and four children. He got
into a lot of arguments with his wife and did not have any
friends or hobbies. He worked and went to school part time.
He was isolated at work, had difficulty concentrating, and
missed approximately 3-4 days of work a month due to his
psychiatric problems.
On mental status examination in June 2008, the veteran was
clean and appropriately dressed. He was taking medication
for his psychiatric disorder. His speech was unremarkable.
He was oriented. His affect was constricted; his mood was
anxious. He did not have homicidal thoughts, but did have
vague thoughts of suicide, without a plan. He had nightmares
4-5 times a week.
The veteran was noted to be sleep impaired and chronically
fatigued. He had low motivation and energy. He was
hypervigilant. The examiner noted that the veteran's
difficulty concentrating caused short-term memory problems.
The diagnoses were PTSD and depression; his GAF score was 53.
Based on the evidence of record, the Board concludes that the
symptomatology of the service-connected PTSD is not
productive of a rating in excess of 30 percent prior to June
11, 2008 because manifestations of the veteran's service-
connected PTSD do not include circumstantial or stereotyped
speech, panic attacks more than once a week, difficulty in
understanding complex commands, memory impairment, impaired
judgment, and impaired abstract thinking.
However, the PTSD is productive of a disability picture that
more nearly approximates the criteria for a rating of 50
percent beginning on June 11, 2008 because of such factors as
a constricted affect, anxiety and depression, insomnia that
caused chronic fatigue, more frequent nightmares, difficulty
with concentration that impaired short-term memory,
hypervigilance, irritability, low motivation and energy, and
continued isolation. 38 C.F.R. § 4.7 (2007). The Board also
notes that the veteran was taking medication for his PTSD
when seen in June 2008.
The Board finds that a rating in excess of 50 percent is not
for assignment for service-connected PTSD beginning June 11,
2008, because the evidence of record does not show the
symptomatology associated with a schedular evaluation of 70
percent, such as suicidal ideation; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control, such
as unprovoked irritability with periods of violence; spatial
disorientation; or neglect of personal appearance and
hygiene.
Additionally, the GAF score of 53 is indicative of no more
than moderate symptomatology. See QUICK REFERENCE TO THE
DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994).
Accordingly, based on the evidence on file, the Board
concludes that a staged rating is warranted for the veteran's
service-connected PTSD as noted above. See Fenderson v.
West, 12 Vet. App. 119 (1999).
The Board has considered whether the increased rating issue
on appeal should be referred to the Director of the
Compensation and Pension Services for extraschedular
consideration. An extraschedular disability rating is
warranted if the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that application of the regular schedular
standards would be impracticable. 38 C.F.R. § 3.321(b)(1)
(2007).
The Board finds nothing in the record that may be termed so
exceptional or unusual as to warrant an extraschedular
rating. In fact, the veteran was working and going to school
in June 2008, although he did miss some days from work each
month due to his PTSD. Therefore, the RO's determination not
to refer this case for extra-schedular consideration was
appropriate.
Finally, in reaching the decision that a rating in excess of
30 percent prior to June 11, 2008 and a rating in excess of
50 beginning June 11, 20008 is not warranted, the doctrine of
reasonable doubt was considered. However, as the
preponderance of the evidence is against a rating in excess
of that granted by this decision, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
An initial rating in excess of 30 percent for the service-
connected PTSD prior to June 11, 2008 is denied.
An initial rating of 50 percent for PTSD beginning on June
11, 2008 is granted, subject to the controlling regulations
applicable to the payment of monetary benefits.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs